WHITCOMBE v POLICE [2018] NZHC 1409

WHITCOMBE v POLICE [2018] NZHC 1409 [14 June 2018]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-Ā-KAHU ROHECRI-2018-463-40[2018] NZHC 1409BETWEEN CALEB SEYMOUR WHITCOMBEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 May 2018Counsel: N P Chisnall for AppellantA J Gordon for RespondentJudgment: 14 June 2018JUDGMENT OF BREWER JThis judgment was delivered by me on 14 June 2018 at 2:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:N P Chisnall (Auckland) for AppellantGordon Pilditch (Rotorua) for RespondentIntroduction[1] Mr Whitcombe appeals his sentence of two years and six months'imprisonment for sexual offending against two teenage girls.1 His argument is thatbecause he was 17 years old at the time of his offending (and he is now only 18 yearsold), he should have been given a greater discount for his youth so that his end sentencewas less than two years, and a sentence of home detention should have resulted.Background[2] Mr Whitcombe's offending is set out in Judge M A MacKenzie's sentencingnotes:[3] In a time sense, the offending which happened first was that whichinvolved Miss D. That happened on 3 February 2017. The two of you hadcommunicated via social media and arranged to go to McDonalds for lunchon 3 February. Instead, the two of you went to the Botanical Gardens. Youwent and sat in the gardens, the two of you kissed and you put your hands onthe inside of Miss D's thighs, moving them up under her skirt to her genitalia.You started rubbing her genitalia on the outside of her underwear. Miss D toldyou that this made her feel uncomfortable. She stood up and asked you to takeher back to school. The two of you started walking back to the car. You thenguided her into a bush where you pulled her to the ground and you pulleddown her skirt and underwear. You knelt in front of Miss D and inserted yourfingers into her vagina forcefully. Your actions caused Miss D's genitalia tostart bleeding. She repeatedly asked you to stop, as your actions wereunwanted and causing her pain. You noticed the blood on your fingers andasked Miss D if she was on her period, but continued thrusting your fingers inand out of her genitalia nevertheless. Miss D said that she did not have herperiod and that you were hurting her and asked you to stop. After a period oftime, you stopped and you got up and walked back to the car, leaving Miss Don her own to pull up her underwear.[4] Miss D told a friend a few days later. The friend messaged you to saythat you should stay away from Miss D or the friend would notify the police.You responded saying you wanted to apologise and you admitted being anidiot for doing it and knew that you should not have done what you did.[5] Then one month later, you offended against Miss B. This was in thecontext of a social occasion. Miss B consumed a large quantity of alcoholduring the evening. On any analysis, she became very intoxicated. You tookit upon yourself to take care of Miss B and you recognised that she was tryingto sneak back to places where the bulk of the party-goers were.[6] The offending against Miss B involved a course of conduct of theinitial indecent assault offending and then later on the digital penetration. Theindecent assault comprised you on three or four occasions putting your hands1 R v Whitcombe [2018] NZDC 9006.on Miss B's breasts and bottom and kissing her. You recognised that she wasso intoxicated to the point where she was about to vomit and so you assistedher to the toilet and sat her on the floor. She vomited on two or threeoccasions. You went back into the toilet to find her semi-conscious, sitting infront of the toilet bowl and then you and a friend carried Miss B to a bedroomwhere you placed her on the bed and put a blanket over her. You left thebedroom but returned to check on her and noticed that she had vomited on thebed. You knelt on the bed and removed Miss B's top and bra and you put yourhand inside her underwear and put your fingers into her vagina. You weredisturbed momentarily. You ceased your activity, but after the person had leftthe bedroom, you put your fingers back inside her vagina on the secondoccasion. You were disturbed for a second time and asked about what youwere doing. You then left the bedroom and the party.[7] The following morning, Miss B woke to find herself naked from thetop part of her body and bleeding from her genitalia. She knew that somethinghad happened to her.[8] No long term injuries were sustained to either Miss D or Miss B.[9] You said that the sexual contact between you and Miss D hadhappened, but that you had obtained consent to kiss, touch and poke her, butdenied aspects of Miss D's account. In relation to Miss B, you acknowledgedthe facts as outlined and that Miss B was in no position to consent due to herlevel of intoxication and that she was passed out when you had poked her inthe bedroom.The sentence[3] Judge MacKenzie decided to adopt separate starting points for the offendingagainst each victim and then to combine them, making an allowance for the totality ofthe offending.[4] The Judge considered the aggravating factors of the offending to be the harmdone to the victims, their vulnerability (particularly that of Miss B), premeditation,breach of trust in relation to Miss D and the scale of the offending (by which the Judgemeant offending against two complainants within a month of each other).[5] Judge MacKenzie considered the offending against each victim falls withinband one of R v AM.2 For the offending against Miss B, the Judge adopted a startingpoint of three-and-a-half years' imprisonment. For Miss D, the starting point adoptedwas two-and-a-half years' imprisonment. From the combined provisional starting2 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.point of six years' imprisonment, the Judge deducted one year to take into accounttotality.[6] The Judge turned to consider Mr Whitcombe's personal mitigating factors todecide the extent to which the starting point of five years' imprisonment should beadjusted downwards. The factors to be considered were youth, remorse and the pleasof guilty.[7] Judge MacKenzie recognised that a discount for youth is appropriate for anumber of reasons. Her Honour referred to the research that young people's brains donot come to maturity until they are in their early twenties. They can make impulsiveand bad decisions. This can affect the way a sentencing Court regards their culpability.[8] Judge MacKenzie took into account also that the effect of imprisonment onyoung people can be crushing and that young people have a greater capacity forrehabilitation than do adults.[9] Recognising there is no guiding rule for the quantum of a youth discount, JudgeMacKenzie noted it can vary from 10 percent to 40 percent or more.[10] Key points in the Judge's assessment of the discount suitable were the factthere were two victims, only a month apart, and Mr Whitcombe's age. He was not,say, 14 or 15 years old at the time of the offending. He had acknowledged, prior tooffending against Miss B, that what he had done to Miss D was wrong.[11] Judge MacKenzie reflected on the importance of rehabilitation and came to theconclusion that the youth discount should be 30 percent:[38] Part and parcel of the issue of youth is, as I have referred to, theprospects of rehabilitation. There is a very helpful report from Mr Lascelles,an expert, and I have the SAFE summary which says that you are suitable fora SAFE programme and that there are good prospects of rehabilitation.Clearly there is a significant need for rehabilitation. You were open and honestwith the psychologist at times to your own detriment and you are willing toundertake rehabilitation. The way I intend to deal with youth is to includeprospects of rehabilitation as part and parcel of a discount for youth. Thediscount that I intend to give for youth, which includes, as I have said, theprospects of rehabilitation and is reflective of your lack of history, is30 percent, which is 18 months off that five year start point.[12] Judge MacKenzie then turned to consider a discount for remorse, whichincluded Mr Whitcombe's preparedness to attend a restorative justice conference. Theissue of remorse was clouded because the psychological report obtained by theDefence from Mr Lascelles indicated a lack of acceptance of responsibility onMr Whitcombe's part for the offending against Miss D. Mr Whitcombe did say hewas remorseful in relation to the offending against Miss B and the Judge accepted thiswas genuine remorse. However, the Judge was not prepared to give a significantdiscount for that expression of remorse and allowed two months. The Judge did notconsider a willingness to participate in restorative justice added anything.[13] As to the credit to be given for Mr Whitcombe's pleas of guilty, the Judgeaccorded the full discount of 25 percent. That led to the end sentence of two-and-a-half years' imprisonment.The appeal[14] Mr Chisnall, in careful submissions on behalf of Mr Whitcombe, focuses theappeal on Judge MacKenzie's assessment of the discount for Mr Whitcombe's youth:4 It is contended that three interlinked errors were made by the learnedJudge that have resulted in a manifestly excessive sentence. These are:(a) The conclusion, when assessing the mitigatory effect of theappellant's age, that because Mr Whitcombe was in the adultjurisdiction, his youth could not be a dispositive factor whenestablishing the length of the sentence to be imposed;(b) There was insufficient recognition of the appellant'srehabilitative efforts, which was evidenced by the fact hesought an assessment of his rehabilitative needs from aclinical psychologist, Nick Lascelles, and enrolled in Safebefore he entered his guilty pleas; and(c) The Judge did not expressly address the informationcontained in the psychological report of Mr Lascelles, whoassessed the appellant's risk of reoffending and identified theways in which that risk could best be reduced. Critically, theJudge did not address Mr Lascelles' evidence regarding thelimited treatment options available in prison for a person ofMr Whitcombe's age.[15] Mr Chisnall submits Judge MacKenzie should not have taken any account ofMr Whitcombe's age leading him to be categorised as an adult offender. The researchabout the duration of adolescent brain development makes that factor irrelevant.[16] Mr Chisnall then expands on his submission that the Judge did not paysufficient regard to Mr Lascelles's report. He submits Mr Whitcombe's offending, andthe attitudes behind it, are attributable to his lack of mental maturity and directlyengages the findings of the research described by the Court of Appeal in Churchward:325 Mr Lascelles' report highlights factors that pulled extremely stronglyin favour of both a significant youth discount, at the first stage of theenquiry, and the overriding of s 128B's presumption at the next. Theseare that:(a) Prison will not personally deter Mr Whitcombe and will onlyprovide temporary community protection throughincarceration.(b) Mr Whitcombe's rehabilitative needs will best be met in thecommunity. Maintaining employment, close connection withhis pro-social community support network and avoiding theinfluence of criminal peers is likely to reduce the appellant'srisk. Indeed, imprisoning Mr Whitcombe may increase therisk he poses to the community in the long-term.(c) The treatment options in prison are extremely limited. Themost suitable interventions are community-based: Safe and/orone-on-one psychological counselling. Mr Whitcombe's ageis likely to preclude the availability of other prison-based sex-offender programmes.26 There is a real doubt whether treatment in prison is a realistic prospect.Counsel observes that Mr Lascelles' report responds to a point madeby the Court of Appeal in Fleming v R – that it is important that judgesbe made aware of the Department of Corrections' policies on theavailability and timing of rehabilitative programmes; as suchinformation may need to be taken into account at sentencing. Here, itis submitted that did not occur.[17] Mr Chisnall goes on to criticise the discount of two months given for theremorse expressed by Mr Whitcombe for the way he treated Miss B. Mr Chisnallsubmits there needed to be a meaningful recognition of Mr Whitcombe's efforts atrehabilitation. He has engaged candidly with Mr Lascelles and, before entering hispleas, self-referred to SAFE.3 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.[18] In Mr Chisnall's submission, the Judge should have given a separate discountto reflect these efforts at rehabilitation and the Judge should have given greater weightto the need for rehabilitation given the high probability that those needs will not bemet in prison:28 Indeed, it is open to this Court to conclude that if imprisoning ayoung offender will defer or deny his or her access to rehabilitation,then that is a "circumstance" that renders the sentencedisproportionately severe under s 8(h) of the Sentencing Act 2002.[19] Mr Chisnall submits the fact there were two victims does not matter. It is theage-related neurological difference between a young person and an adult that goes toculpability. Whether there was one victim or more does not change the effect ofimprisonment on young people or that young people have greater capacity forrehabilitation:30 Simply put, the fact that there Mr Whitcombe committed two offencesincreased the importance of meaningful rehabilitative intervention.Moreover, this is a case where the interests of the appellant and publicalign, as "there is benefit to the community in ensuring that the chanceof rehabilitation is not shut out, and in reducing the prospect of ayouthful offender emerging from prison a more hardened criminalthan he went in."[20] In short, Mr Chisnall's submission is that this is a "paradigm example" of acase where youth should be treated as "a mitigating factor of high, perhaps decisive,significance not to be circumscribed by any fixed outer percentage".4 In Mr Chisnall'ssubmission, Mr Whitcombe's rehabilitative prospects should have been met with ayouth discount of 45 percent.Discussion[21] I must allow the appeal if I am satisfied that, for any reason, there is an errorin Mr Whitcombe's sentence and a different sentence should be imposed. Such anerror will exist if Mr Whitcombe's sentence of two years and six months is manifestlyexcessive. However, if that sentence is within the range available to the Judge, thenany error in the analysis by which the Judge determined the sentence is unlikely torequire a different sentence.4 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].[22] Mr Chisnall does not take issue with the starting point of five years'imprisonment. In my view, the starting points adopted by the Judge for each offencewere within the range available to her as set out in R v AM. The reduction of one yearto account for totality was generous (17 percent). These were separate and unrelatedoffences, with the offending against Miss B representing a significant escalation inseriousness. I suspect Judge MacKenzie was unconsciously biased towards the youthfactor. I will, nevertheless, take five years as an available overall starting point.[23] The main issue is whether Judge MacKenzie, against the principles laid downby the Court of Appeal in cases such as Churchward and Pouwhare, gave sufficientweight to Mr Lascelles's report in calculating the youth discount of 30 percent.[24] I will dispose of two other issues before I discuss the main issue. First, Idisagree with Mr Chisnall's submission that Judge MacKenzie should not have hadregard to Mr Whitcombe's age putting him in the category of an adult, as opposed toa youth, offender. Judge MacKenzie did not use Mr Whitcombe's age to exclude theprinciples applicable to the sentencing of young people. The Judge was making thepoint that an offender aged 14 or 15 years old, transferred to the District Court or theHigh Court for sentencing, will generally be treated more leniently than a 17-year oldoffender because there tends to be even less maturity, less understanding ofconsequences, and hence less culpability. There can also be greater chances ofrehabilitation because antisocial attitudes may be less ingrained.[25] Second, the Judge did not err in limiting her discount for remorse to twomonths in respect of expressed remorse for Mr Whitcombe's offending againstMiss B. Indeed, I do not think any discount was necessary.[26] Mr Whitcombe's overall attitude to his offending shows a lack of remorse.Mr Lascelles reports that in respect of Miss D, Mr Whitcombe gave an account quiteat odds with the summary of facts. He said he had done nothing wrong and that Miss Dwas "a slut". In respect of Miss B, he downplayed his culpability (for example, hesaid he did not believe he caused Miss B to bleed from her genitals). He accepted thatwhat he did was wrong, that Miss B would have been distressed, and added "she didn'tseem like a slut". Mr Lascelles records:45. When asked how he felt about the offences, Mr Whitcombe describedfeeling bad due to "all this court stuff", and the stress on his parentsin particular. He did not mention victims until prompted, stating hefelt very bad about what he had done to the second victim.[27] An offender is not entitled to a separate discount for remorse merely forprofessing it. The discount is earned by showing that, because of an understanding ofthe wrongfulness of the conduct, a tangible acceptance of responsibility for thatconduct, and its effects on any victims, has occurred. Mr Whitcombe engaged withMr Lascelles and was assessed by SAFE, but that was because Mr Chisnall advisedhim to do so. That is not a criticism. It was proper advice and Mr Whitcombe neededit. The same can be said of his preparedness to engage in restorative justice. But,overall there is slender indication he accepted responsibility for his actions (and thecontrary is true in respect of Miss D). His remorse was primarily for his predicamentand for the effects on his parents.[28] I come back to the main issue – the appropriateness of the youth discount.First, I see no failure by Judge MacKenzie to recognise the principles giving rise tothe discount. The issue goes to whether, given Mr Lascelles's report and the overallcircumstances, they were applied appropriately.[29] Churchward v R was a case of murder committed by two girls aged 14 yearsand 17 years, with Ms Churchward being the latter. The Court of Appeal gave leavefor Dr Chaplow to provide evidence on the development of the adolescent brain.[30] An issue for the Court of Appeal was how Ms Churchward's youth shouldaffect the minimum period of imprisonment she would serve:[76] We accept the submission made on behalf of Ms Churchward that,although there is no automatic displacement of a 17-year minimum period onthe basis of youth alone, the age of a defendant can be a mitigating factor andfalls naturally for consideration under the broadly-worded test of "manifestlyunjust". We refer to s 8(g) of the Sentencing Act, and s 25(i) of theNew Zealand Bill of Rights Act 1990 (Bill of Rights), which affirms:"The right, in the case of a child, to be dealt with in a manner that takesaccount of the child's age."[77] Youth has been held to be relevant to sentencing in the followingways:(a) There are age-related neurological differences between youngpeople and adults, including that young people may be morevulnerable or susceptible to negative influences and outsidepressures (including peer pressure) and may be moreimpulsive than adults.(b) The effect of imprisonment on young people, including thefact that long sentences may be crushing on young people.(c) Young people have greater capacity for rehabilitation,particularly given that the character of a juvenile is not as wellformed as that of an adult.[78] Additional factors recognised by the England and Wales SentencingGuidelines Council are: offending by a young person is frequently a phasewhich passes fairly rapidly and thus a well-balanced reaction is required inorder to avoid alienating the young person from society; and criminalconvictions at this stage of a person's life may have a disproportionate impacton the ability of the young person to gain meaningful employment and play aworthwhile role in society.[79] Looking at these related factors in more detail, we note first thematters discussed by Dr Chaplow as to the differences between young peopleand adults. As he notes, there is a growing body of scientific evidence onadolescent brain development that demonstrates that young people aresignificantly different to adults.[80] The New South Wales Department of Education and Training hasstated that adolescence is a period of development, particularly in the abilityto produce, establishing an individual identity and developing logical andrational thought processes. It summarises the research as follows:(a) the ability to plan, consider, control impulses and make wisejudgements is the last part of the brain to develop;(b) adolescents are built to take risks and it is simply part of theirbiology;(c) most adolescents know right from wrong, but the environmentin which risk-taking and other behaviours occur can lead toinappropriate behaviour; and(d) adolescents are more prone to react with gut instincts andimpulsive and aggressive behaviour.[81] These neurological factors can lead to a reduction in culpability ofyoung people as compared to adults. This does not mean that young personsshould not take responsibility for their actions: it is merely that their actionsmay be partly explicable (but not necessarily excusable) by their state ofneurological development. In KT v R, the Supreme Court of New South Wales(Court of Criminal Appeal) stated that:The law recognises the potential for the cognitive, emotional and/orpsychological immaturity of a young person to contribute to theirbreach of the law. Accordingly, allowance will be made for anoffender's youth and not just their biological age.[84] As was noted in R v Rapira, however, where the offending is grave,the scope to take account of youth may be greatly circumscribed. This isbecause the very factors that may lead young people to offend may causeconcerns about future public safety. There is also the need for denunciationand deterrence, both specific to the offender and in general. This Courtsummarised the relevance of youth to sentencing in Pouwhare v R as follows: the fact than an offender is a young person can sometimes be givenradical effect on sentence, unconstrained by any normative percentage,even where offending is serious. In other cases that is not possible. Theyoung age of the offender cannot be accorded presumptive, let aloneparamount, weight. The objective seriousness of the offending, theyoung person's part in it, anything aggravating and otherwisemitigating must also be weighed.(Footnotes omitted)[31] The Court of Appeal went on to discuss:(a) The adverse effect of imprisonment on young people: " adolescentsexperience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates whilstincarcerated".5 This is relevant to s 8(h) of the Sentencing Act whichrequires any particular circumstances of the offender to be taken intoaccount if they mean that a sentence that would otherwise beappropriate would be disproportionately severe.(b) The rehabilitative prospects of young people: " a young first offendershould not be regarded as beyond help even after serious offendingunless there is no escape from that conclusion".6 The Court quotedfrom its earlier decision in R v K (CA345/02):7The gravity of a young offender's offending has necessarilyto be balanced against the need to consider his rehabilitationand reintegration into society and the outcome should be theleast restrictive in the circumstances of the case. Whilst theseare not the only principles that require balancing in the caseof a young offender, they are the principles to be givenemphasis.5 At [85].6 At [88]; citing R v Cuckow CA312/91, 17 December 1991 at 10.7 At [89]; R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [22].[32] The Court addressed the balancing factor that the principle that youth may leadto a sentence reduction is not absolute. It may need to yield to the public interest. TheCourt quoted its earlier decision in R v Mahoni:8The principle that for a variety of reasons, youth may lead to a reduction in anotherwise appropriate sentence is well established. See R v Titoko CA114/96,11 August 1996 where this Court drew attention to s 7 of the Criminal JusticeAct and art 37(b) of the United Nations Convention on the Rights of the Child.It should be noted that the principle is not founded solely on consideration foryoung persons; there is benefit to the community in ensuring that the chanceof rehabilitation is not shut out, and in reducing the prospect of a youthfuloffender emerging from prison a more hardened criminal than he went in.However, the principle is not absolute and there are situations where it mustyield to the public interest [33] Mr Chisnall relies also on the Court of Appeal's 2010 decision of Pouwhare vR.9 That case involved the discount for youth which could be given to a 16-year oldwhose case was transferred to the District Court from the Youth Court consequent toher pleading guilty to charges of aggravated robbery, robbery and possession ofcannabis.[34] The main issue in Pouwhare was whether youth justice sentencing principlesrequired to be observed by the Youth Court accompanied a youth whose case wastransferred to the District Court or the High Court. The Court of Appeal held they donot. The Sentencing Act applies. However, it went on to say:[82] A "young person" under the CYPF Act is a "child" for the purposes ofthe UN Convention on the Rights of the Child, which New Zealand ratified in1993. For its purposes a "child" is everyone below 18 years unless underdomestic law majority is attained earlier. When sentencing a young person,therefore, a Judge should, to the extent that this is consistent with the letter ofthe Sentencing Act, act in accordance with the Convention and, in particular,should treat the young person's "best interests" as a "primary consideration".The Judge must treat the young person in a way that promotes his or her "senseof dignity and worth"; must reinforce, the young person's "respect for thehuman rights and fundamental freedoms of others"; and must, as theSentencing Act also expressly calls for, impose a sentence which "takes intoaccount the child's age and the desirability of promoting the child'sreintegration and the child's assuming a constructive role in society".[83] In the end, a Judge sentencing a young person under the SentencingAct must always weigh the young person's age and the reasons why he or sheoffended, against the seriousness of his or her offending and prospects of8 At [90]; R v Mahoni (1998) CRNZ 428 (CA) at 436-437.9 Referred to in Churchward, above n 3, and quoted at [84].rehabilitation. Sometimes the young person's age will be a mitigating factorof high, perhaps decisive, significance not to be circumscribed by any fixedouter percentage. Equally, there can be no warrant for saying that youth, ofitself, must always prevail as the paramount value on sentence, or that youthalone can justify radically reducing the sentence which would otherwise beproper.(Footnotes omitted)[35] Having discussed cases where significant discounts for youth had been given,the Court of Appeal said:[96] As these decisions illustrate, the fact than an offender is a youngperson can sometimes be given radical effect on sentence, unconstrained byany normative percentage, even where offending is serious. In other cases thatis not possible. The young age of the offender cannot be accordedpresumptive, let alone paramount, weight. The objective seriousness of theoffending, the young person's part in it, anything aggravating and otherwisemitigating must also be weighed. The analysis Mako calls for is alwaysindispensable.[36] Accordingly, there is no outer limit to the discount for youth. If the offenderis a child as defined in the UN Convention on the Rights of the Child (andMr Whitcombe was), then there can be no fixed discount and the type and length ofsentence is not constrained by any percentage. It will depend on the case.[37] The dicta in Churchward and Pouwhare are to be applied within the frameworkof the Sentencing Act (the Act). The Act states eight purposes of equal weight10 and10 principles.11 A sentencing Judge must take them all into account, although not allwill be relevant. There is tension between some of them. Sentencing is not amathematical exercise, it is an evaluative one. The purposes and principles ofsentencing set out in the Act have to be considered against the circumstances of theoffending and the offender, and in accordance with the applicable case law.[38] I add that an appellate Court, when considering whether an error has been madesuch that a different sentence should be imposed, bears in mind that for any offendingthere is available to the sentencing Judge a sentence range. That is because Judgescan reasonably differ in their evaluation of the relevant factors going to sentence. It is10 Section 7.11 Section 8.only if a sentence is outside the range an appellate Court finds applicable to particularoffending that it will intervene.[39] The purposes of sentencing most applicable to Mr Whitcombe, and which callfor his freedom to be restricted are:(a) To hold him accountable for the harm done by him to Miss D andMiss B, and to the community.(b) To denounce his conduct.(c) To deter him and others from like offending.(d) To protect the community.(e) To provide for the interests of Miss D and Miss B.[40] Other purposes which, as is apparent from the discussion on the discount foryouth, should be given prominence in Mr Whitcombe's case are:(a) To promote in Mr Whitcombe a sense of responsibility for, and anacknowledgement of, the harm he has done.(b) To assist in Mr Whitcombe's rehabilitation and reintegration.[41] In giving effect to these purposes, the following principles are particularlyrelevant and must be taken into account:(a) The gravity of Mr Whitcombe's offending, including his degree ofculpability.(b) The seriousness of the offence of sexual violation by unlawful sexualconnection in comparison with other types of offending. The maximumpenalty for the offence is 20 years' imprisonment, which puts it amongthe most serious of offences.(c) The general desirability of consistency with appropriate sentencinglevels in similar cases.(d) That the least restrictive outcome appropriate in the circumstances mustbe imposed.(e) Any particular circumstances of Mr Whitcombe that mean a sentencethat would otherwise be appropriate would, in his case, bedisproportionately severe.(f) Mr Whitcombe's personal and family background in imposing asentence with a partly or wholly rehabilitative purpose.[42] The Act also specifies aggravating and mitigating factors that must be takeninto account. I have referred to the aggravating factors Judge MacKenzie identified.It is important to note that Parliament stipulated that mitigating factors the Court musttake into account on sentencing include the age of the offender, whether and when hepleaded guilty, any remorse and any previous good character.[43] There is a further statutory provision relevant to Mr Whitcombe's case. It iss 128B of the Crimes Act 1961. This provides:(1) Every one who commits sexual violation is liable to imprisonment fora term not exceeding 20 years.(2) A person convicted of sexual violation must be sentenced toimprisonment unless, having regard to the matters stated in subsection(3), the court thinks that the person should not be sentenced toimprisonment.(3) The matters are—(a) the particular circumstances of the person convicted; and(b) the particular circumstances of the offence, including thenature of the conduct constituting it.[44] I accept that where the particular circumstances of the person convicted includehis or her young age, then for the reasons already discussed the presumption ofimprisonment can be rebutted depending on all the circumstances.[45] In assessing the discount applicable to Mr Whitcombe's youth, I observe thathis offending does not have the hallmarks of impulsive risk-taking associated withadolescent brain development. The offending against Miss D occurred on 3 February2017. Mr Lascelles records that Mr Whitcombe was the subject of a Police warningin 2016 after a sexual interaction with a female student. According to Mr Lascelles,the Police occurrence record stated a 17-year old female told Police she had metMr Whitcombe in a park during school hours, and there had been consensual sexualcontact. He repeatedly asked for oral sex, which she kept refusing. She did not allegeany offending but wanted Mr Whitcombe to be told that "no means no". Police spoketo Mr Whitcombe and told him to "take no for an answer and not to force anything tohappen as if there was an offence, there could be a different outcome". Mr Whitcombeacknowledged the incident to Mr Lascelles and that the Police spoke to him. He saidit was "like a warning but not".[46] After the offending against Miss D, Mr Whitcombe responded to a messagefrom a friend of Miss D, saying that he wanted to apologise, he was an idiot for doingit, and he knew he should not have done it. Nevertheless, a month later he offendedagainst Miss B.[47] Mr Whitcombe knew right from wrong. His offending was not impulsive andwas for sexual gratification against an objectification of his female victims. I do notconclude his immaturity was not a factor in his offending. However, I do not see thisas a case where rashness, risk-taking, peer-pressure susceptibility or situationalmisjudgement reduce culpability.[48] There is a need for rehabilitation. Mr Lascelles assessed Mr Whitcombe asbeing at moderate risk of sexual offending during the next three years if he isunsupervised in the community:He is most likely to offend against a similarly aged female known to him,either in the context of an initially consensual interaction which progressesbeyond boundaries set by a victim, or when a woman is unable to consent dueto intoxication.[49] Mr Lascelles's conclusions are summarised by Mr Chisnall and quoted at [16].In short, it is not in Mr Whitcombe's best interests to be sentenced to a term ofimprisonment. He is unlikely to receive effective rehabilitative intervention. Theremight be a greater risk of a "next victim" if Mr Whitcombe is exposed to criminalpeers and does not do a SAFE course.[50] On the other hand, the likelihood of participation by Mr Whitcombe in a SAFEcourse effecting a meaningful rehabilitation cannot be assessed. Mr Lascelles doesnot make a prediction. The Courts have recognised a real prospect of rehabilitationthrough demonstrated efforts to be a major factor in calculating a youth discount.12[51] Mr Chisnall argues that Mr Whitcombe's personal circumstances, particularlyhis youth, mandate a radical reduction of his sentence to allow for home detention. Iunderstand Mr Chisnall's desire to achieve that outcome for his client, but a sentencingJudge must not artificially tailor a sentence to achieve a desired outcome.13 Asentencing Judge must fix the provisional sentence in accordance with the law and ifother options are available, consider them at that point.[52] Since Mr Whitcombe's sentence should be generally consistent withappropriate sentencing levels in similar cases, I look for such cases.[53] R v Rehu involved a 15-16 year old sentenced for sexual offending againstchildren.14 The nature of the offending was simulated intercourse on three victims.[54] Justice Toogood applied a youth discount of 30 percent, noting:[34] I acknowledge that youth alone does not automatically justifyleniency in cases of serious child abuse by a young offender, but I accept that,while you knew what you were doing was wrong, you did not fully understandits gravity.15 I make allowance for the likelihood that your actions involvedsome element of experimentation and a reduced appreciation of theseriousness of your actions.1612 R v Griffiths [2018] NZHC 1104; R v Rehu [2015] NZHC 2178; R v Alletson [2009] NZCA 205;M (CA844/11) v R [2012] NZCA 352; Lennon v R [2012] NZCA 551; R v Parata CA72/01,21 June 2001; V (CA400/12) v R [2012] NZCA 465; Overton v R [2011] NZCA 648.13 R v Honan [2015] NZCA 94 at [34]; R v Edwards [2006] 3 NZLR 180 (CA) at [24] and [46].14 R v Rehu, above n 12.15 R v Accused (CA265/88) [1989] 1 NZLR 643 (CA).16 R v Parata, above n 12.[55] R v Alletson involved an appeal against conviction and sentence.17 Theappellant was convicted of charges relating to sexual offending against two younggirls, aged between six and 10. The most serious aspect of the offending involvedinstances of digital penetration. The appellant was between 15 and 17 years old at thetime of the offending. He was sentenced to two years and 10 months' imprisonment.[56] The sentencing Judge identified youth as the prime mitigating feature. Takingthis into account along with the appellant's lack of previous convictions, prospects ofrehabilitation, strong family support and good employment record, the Judge held thata discount of 30 percent was appropriate. In fact, due to what appears to have been amathematical error, the Judge applied a discount of about 43 percent.[57] The Court of Appeal agreed that a discount for youth was appropriate given"the immaturity and lack of judgment of a young person which may reduce his or hercriminal responsibility".18 The discount of 43 percent was termed "clearly more thanadequate recognition of the appellant's youth".19[58] In M (CA844/11) v R, the appellant was convicted of raping his profoundlydisabled and bed-ridden aunt when he was between 14 and 15 years old.20 He wassentenced roughly eight years later. The Court of Appeal held that the discount of 30percent applied by the sentencing Judge was appropriate, noting:[25] The extent of a discount due to the age of the offender depends largelyon factors that are specific to the facts of each particular case. A reduction insentence is in part a recognition of the reduced culpability of a youthfuloffender, as compared to an adult offender. In part, it is a reflection of thesignificant disadvantage of spending part of the offender's formative years inprison. It may also reflect the greater emphasis on rehabilitation that may beappropriate for a youthful offender. In this case, the two latter considerationsmust necessarily be tempered by the lengthy delay between the offending andthe sentencing.[59] In Edri v R, the Court of Appeal substituted a combined discount of 33 percentfor youth and mental impairment in the form of foetal alcohol spectrum disorder.2117 R v Alletson, above n 12.18 At [66].19 At [68].20 M (CA844/11) v R, above n 12.21 Edri v R [2013] NZCA 264.The appellant had been convicted of rape and indecent assault, committed when hewas 17 years old.[60] In Lennon v R, the Court of Appeal allowed a discount of one third for youthin relation to charges of indecent assault and sexual violation of young children.22 Theappellant was aged between 14 and 15 at the time of the offending.[61] In R v Parata, a discount of 50 percent was allowed in relation to sexualoffending by a 16-year old against an eight-year old.23 However, an important factorin the Court's reasoning was the conduct of the appellant in the years following theoffending:[3] There are no indications that the appellant has re-offended since. Overthe following ten years the appellant entered into married life and had threechildren. When apprehended he was leading a blameless and stable familylife in another part of the country.[10] In the present case no-one could suggest that this 16 year-old boywould not have appreciated the wrongfulness of interfering with the youngerboy. Equally, however, some allowance could be made for the likelihood thatthere was some element of experimentation and reduced appreciationcompared with the understandings of a mature adult. There is also some roomfor recognising the success that the appellant made of his life over the ensuingten years. The pre-sentence report was entirely favourable.[62] In V v R, a discount of 30 percent was allowed to reflect youth, rehabilitationand remorse.24 The offender, aged between 14 and 17, was convicted of sexualoffending against his sister, aged between five and eight.[63] In Overton v R, the Court allowed a discount of 22 percent for youth (includingthe possibility that the appellant had not appreciated the gravity of his offending) andrehabilitation prospects.25 The offender, aged between 15 and 16, was convicted ofsexual offending against a young relative, aged between six and seven.22 Lennon v R, above n 12.23 R v Parata, above n 12.24 V (CA400/12) v R, above n 12.25 Overton v R, above n 12.[64] R v Griffiths did not involve sexual offending, but it is a useful benchmark ofthe standard required to justify a youth discount of over 30 percent.26 Mr Griffithspleaded guilty to dangerous driving causing death and dangerous driving causinginjury. He was 18 years old at the time of the offending.[65] Justice Toogood applied a discount of 40 percent to reflect Mr Griffiths'syouth, and importantly, his mental health. Mr Griffiths was diagnosed with ADHD,Autism Spectrum Disorder and Asperger's Syndrome. Justice Toogood held:[29] I consider that it is necessary in this case to apply significant discountsfrom the starting point to reflect the operative effect of your psychologicalconditions on your behaviour on this fateful morning and, therefore, on youroffending, and also to reflect that the impulsive and reckless nature of theoffending can be attributed, at least in part, to youth and immaturity.[66] It is clear from Toogood J's judgment, that had the relevant mental disordersbeen absent, a far smaller discount would have been warranted.27Decision[67] I emphasise that sentencing a young first offender on serious charges is alwaysdifficult. In this case, Mr Whitcombe has a supportive family and his upbringing wasnot marred by the abuses and deprivations so often seen in the backgrounds of youngoffenders. At the time he saw Mr Lascelles, he was leading a normal and productivelife. He had a job (commenced in June 2017) and was looking forward to starting anapprenticeship. He had a girlfriend and their relationship had progressed to includeregular sexual intercourse. He chafed at the 10:00 pm curfew which was a part of hisbail conditions and looked forward to being able to move out of his parents' house:In such circumstances the necessary balance between retribution, deterrenceand rehabilitation, the need to mark society's condemnation of the behaviour,coupled with compassion, is extremely difficult to achieve.28[68] As the case law makes clear, the mere fact that Mr Whitcombe was 17 yearsold at the time of his offending does not automatically displace all sentencing purposesand principles other than those which favour Mr Whitcombe's best interests. Those26 R v Griffiths, above n 12.27 See the discussion of Mr Griffiths's mental health at [20]-[26].28 McKerrow v Police HC Christchurch A74/02, 13 August 2002 at [23].interests must be a "primary consideration" for the purposes of the UN Convention onthe Rights of the Child, but the Sentencing Act still applies.[69] In Mr Whitcombe's case, weighing his age and the reasons why he offended,against the seriousness of his offending and prospects of rehabilitation I do not see thatthe interests of justice require a radical reduction from what would otherwise be aproper sentence.[70] In my view, Judge MacKenzie took proper account of the youth discountfactors and her allowance of 30 percent is appropriate and consistent with similarcases.[71] The end sentence of two years and six months' imprisonment is not acrushingly long one. Mr Whitcombe can expect to be considered for parole afterserving 10 months. There is, as Mr Lascelles recognises, the possible option ofrehabilitative intervention by a Department of Corrections psychologist, and Irecommend to the Department that this option be considered.[72] The appeal is dismissed.________________________________Brewer J